Rule 68 Offers and Discovery Pitfalls: Lessons from Johnson v. Crowdvest

This week, a TCPA class action took us back to a procedural trend from a decade ago: the Rule 68 offer of judgment.

Under the Federal Rules of Civil Procedure, Rule 68 allows a defendant to make a formal settlement offer to the plaintiff, including accrued costs. If the plaintiff accepts within 14 days, judgment is entered. If not, the offer is withdrawn. But if the plaintiff ultimately recovers less than what was offered, they may have to cover the defendant’s post-offer costs.

In Johnson v. Crowdvest, LLC, No. 24-CV-1293-JPS, 2025 U.S. Dist. LEXIS 94739 (E.D. Wis. May 19, 2025), the plaintiff alleged Crowdvest sent unsolicited marketing texts to numbers on the federal “do-not-call” list in violation of the TCPA. Crowdvest initially failed to respond, and the court entered a default.

Then, months later, the company reemerged with a Rule 68 offer of judgment.

Johnson moved to strike the offer, arguing it was a tactic to avoid class certification. The court disagreed. Relying on the Supreme Court’s 2016 decision in Campbell-Ewald Co. v. Gomez, the judge confirmed that an unaccepted Rule 68 offer does not moot a class action. It cannot be used to “pick off” lead plaintiffs before class certification.

But Crowdvest’s procedural missteps didn’t end there.

The court also addressed its complete failure to respond to Johnson’s discovery requests. Under federal rules, failing to object on time generally means all objections are waived. Crowdvest offered no explanation for the delay, so the court compelled full responses and ordered the company to pay the plaintiff’s attorneys’ fees.

This case is a sharp reminder: Rule 68 is no longer a silver bullet against class actions, and ignoring discovery can carry real consequences. Courts are increasingly unwilling to tolerate procedural gamesmanship—especially when one party refuses to participate meaningfully.